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2002 DIGILAW 933 (PAT)

Jalsa Mahto v. State of Bihar

2002-08-27

SACHCHIDANAND JHA, TARKESHWAR PRASAD SINGH

body2002
JUDGEMENT T.P.SINGH, J.:- The appeal was filed by two appellants, 2. Seba Mahto as appellant no.1 and Jalsa Mahto as appellant no.2, both being related inters as father and son respectively. Under the impugned order both the appellants were convicted under sections 302/34 of the Indian Penal Code and section 201 of the same and were sentenced with rigorous imprisonment for life and for five years respectively, their conviction is in relation to committing murder of one Chunaki Devi, daughter-in-law of appellant no.1 and wife of appellant no.2. Appellant no.1 has died during pendency of this appeal and so his name has been expunged from this proceeding by order dated 14.02.1992. By this judgment therefore only appeal of the appellant no.2 Jalsa Mahto will be dealt with. 2. The prosecution case as briefly sketched is that daughter of the informant Buno Mahto (P.W.5) was married to the appellant Jalsa Mahto about seven years ago. Appellant Jalsa Mahto, his deceased father Seba Mahto and his other family members used to torture her. They did not give requisite food and clothing to her. This led to a village panchayati convened at the instance of the informant in which appellant Jalsa Mahto, his father Seba Mahto also participated. They assured in the panchayati that in future they would not torture the informant's daughter Chunaki Devi (the deceased of this case). Two other persons Shobhi Mahto and Kaleshwar Mahto of the appellant's village also attended the panchayati. It is alleged that after 15 days of the panchayati the informant's son Mithu Mahto (P.W.2) went to the appellant's house and when enquired, Chunaki Devi, the deceased, told him that treatment of her in-laws had not improved and she was being dealt with in the same cruel manner and subjected to tortures. Thereafter, on 25th November, 1985 an informant's relation namely Kuldip Mahto (P.W.4) of village- Siyatarh came to the informant and informed that appellant Jalsa Mahto had sent a massage (to him, the informant through him i.e. P.W.,2) that Chunaki Devi had fled away from his house and so she should be searched. Thereafter, on 25th November, 1985 an informant's relation namely Kuldip Mahto (P.W.4) of village- Siyatarh came to the informant and informed that appellant Jalsa Mahto had sent a massage (to him, the informant through him i.e. P.W.,2) that Chunaki Devi had fled away from his house and so she should be searched. It is alleged that on this information the informant came to try appellant's place in Village Pandeyadih Dhodhari on 27.11.1985 and enquired from his son-in-law, the appellant who did not explain about Chunaki Devi rather in turn alleged that the informant himself had concealed her in his house and had come to enquire from him. The Informant then returned from that place and searching Chunaki he was wondering for when he found information in the way that a dead body of female was floating in the pond of one Delep Sarkar. They went there and found a dead body floating in the water of the pond and he identified the same to be that of his daughter Chunaki. It is alleged that the appellant Jalsa Mahto his father and other family members committing murder of informant's daughter threw the dead body in the pond to screen them selves from punishment. With this information Jhajha P.S. Case No. 60/85 under sections 302/201/34 of the I.P.C. was registered and investigation was taken up. The Investigating officer recovered dead body from the pond. The postmortem examination of the dead body revealed that there were two penetrating wounds below both the eye balls and the eye balls were protruded out of the orbital cavity and on dissection there was fracture of Hyroid bone. Both the injuries were found ante mortem to suggest that it was a case of homicidal death. The Investigating Officer then recorded statement of other witnesses and after completing investigation charge" sheet was submitted. It is to be noted that apart from appellant Jalsa Mahto and his deceased father Seba Mahto, two other accused Kaleshwar Mahto and Shobhi Mahto also were charge sheeted because they were alleged to have participated in the panchayati as referred to above And so all the four were put on trial before the court below. They pleaded not guilty to the charge and denied entire allegation of the prosecution. 3. The prosecution in support of charge against the accused examined as may as eight, witnesses. They pleaded not guilty to the charge and denied entire allegation of the prosecution. 3. The prosecution in support of charge against the accused examined as may as eight, witnesses. Among them P.W.5, the informant and P.W.2 his son supported the entire allegation as made in the fardbeyan. P.W.7 is co-villager of the informant and he also supported and corroborated the informant's testimony in his evidence. P.W.3 is a witness to recovery of the dead body from the pond and he has signed the inquest report also vide Ext.2. P.W.4 Kuldeep Mahto is relation of the informant: and he deposed about the appellant Jalsa Mahto giving him information about disappearance of Chunaki Devi and his asking him to convey this news to the informant. P.W.8 is Investigating Officer and P.W.1 is doctor who has held postmortem examination on dead body of the deceased P.W.6 has been simply tendered. As many as four defence witnesses were examined to explain disappearance of Chunaki Devi from the house of appellant and they deposed that on 25th November, 1985 Chunaki Devi the deceased had accompanied D.Ws. 1, 2 and 3 the other three female of appellant's village, to jungle to bring fire wood and it is in the way that she had separated herself from them on the pretext of easing out and from that place and time she was traceless. The defence took plea that Chunaki Devi might have been murdered by some unknown criminals who threw her dead body into the pond. 4. The learned trial court having considered the evidence of prosecution and having found the defence plea unacceptable held the appellant Jalsa Mahto and his father Seba Mahto guilty under Sections 302/34 of the Indian Penal Code and sentenced them as referred to above. However, he having found no evidence against rest two of the accused, namely, Kaleshwar Mahto and Shobhi Mahto, acquitted them from the charges. 5. The learned appellant's counsel Smt. Bela Singh while assailing the impugned judgment has submitted that no witnesses claim to have seen that the appellant and his deceased father committed murder of the deceased namely wife of the appellant and they threw the dead body into the pond in question. 5. The learned appellant's counsel Smt. Bela Singh while assailing the impugned judgment has submitted that no witnesses claim to have seen that the appellant and his deceased father committed murder of the deceased namely wife of the appellant and they threw the dead body into the pond in question. This is a case of circumstantial evidence and the circumstances relied upon by the prosecution do not constitute complete chain to afford ground to infer the guilt of the appellant and rather the circumstances are consistent to his innocence. She argued that the dead body was found floating in the water of the tank of Dilip Sarkar, and there is evidence in cross examination of P.W.3 and P.W.4 ,as also of the Investigating Officer that the relevant tank is within the compound wall and at a distance of only a few yards there is police picket. It is also on the record that care takers of Dilip Sarkar Kothi live there. It was not possible for the appellant, therefore to take the dead body in the night and throw the same in "to the pond. She further argued that the defence witnesses have test filed that the deceased had gone to jungle on 25.11.87 along with D.Ws.1, 2 and 3, all ladies of the appellant's village to collect fire wood and she had left their company in the way for herself easing out. So it might have been that the deceased having eased herself went into the pond for the sake of easing-water and seeing her the servants of Dilip Sarkar throttled her to death and threw the dead body into the tank.' The court below has not considered this hypothesis applying reason and so this missing chain in the circumstances relied upon by the prosecution entitles the appellant to benefit of doubt and to acquittal. 6. Let us reconsider together the evidence, prosecution has led to establish the circumstances relied upon by it vis-a-vis the hypothesis put, as above, by the appellant. We may then examine the probable result of the inferences to be drawn in this case and test the correctness of the impugned judgment. The prosecution in this case has relied upon the following circumstances:- (i) That the deceased being the wife of the appellant was not pulling on well in her sasural. We may then examine the probable result of the inferences to be drawn in this case and test the correctness of the impugned judgment. The prosecution in this case has relied upon the following circumstances:- (i) That the deceased being the wife of the appellant was not pulling on well in her sasural. She was being tortured by the appellant and being fed up she had to sometimes go to her parents place; (ii) That the dead body of the deceased was found in a tank and the injuries on her dead-body was suggestive of that she was murdered; (iii) That there was no injury on any private part of the deceased and so it is further suggestive of that she was murdered for some personal grudge of the murderer. (iv) At the relevant night she was. In the house of the appellant living with him and she was missing only from the morning of 25.11.85. (v) Conduct of the appellant in sending P.W. 5 with message about her being traceless. 7. On these circumstances referred to above there are firstly the testimonies of three son and P.W.7 his co-villager also have supported fully the testimony of the Informant and have corroborated the same. We have been taken to cross examination of all the three witnesses during argument, but nothing has been found adverse to the prosecution. 8. Evidence of P.W.3 Surendra Prasad Gupta and that of P.W.8 Ram Nageena Roy, the Investigating Officer are basically on recovery of dead body of the deceased from the pond. It is not in dispute that the deceased was missing from the appellant's house since 25.11.85 morning hour, and her dead body was recovered by the Investigating Officer on 27.11.85 from the tank in question situated at Simulated 4 kilometer away in the north of appellant's village, and accordingly inquest was made and P.W.3 signed over the same. Both the witnesses P.Ws. 3 and 8 have testified it. Then P.W.1 Dr. Manoj Kumar Sinha holding postmortem examination of the deceased has testified that there were two penetrating wounds below both the eye balls, eye balls were protruded out of the orbital cavity, and on dissection fracture of thyroid bone was found. These all were ante mortem injury. The deceased according to him had died of asphyxia about more than 24 hours before. Penetrating wound was by penetrating weapon. These all were ante mortem injury. The deceased according to him had died of asphyxia about more than 24 hours before. Penetrating wound was by penetrating weapon. There was no injury at all on any private part of the deceased. 9. It is thus apparent from the evidence of doctor that it was a case of homicidal death, rather a case of murder by strangulating the deceased from which her thyroid bone was fractured and asphyxia was witnesses as P.Ws. 5, 2 and 7 P.W. 5, the informant has testified that after the marriage the daughter. Chunaki had gone to her sasural, but she was nor well there as her family members were fortuning her in supply of food and clothes to her saying that as she was not giving birth to a child, she should be killed. For this a panchyati Was held in the informants village in which appellant as also the father Sewa Mahto attended and on giving assurances by Sewa Mahto in the Panchyati that there would be no further tortures to his daughter and on his requesting for bidai the deceased was sent again to appellant's house. He was further testified that 15 days thereafter his son Mithu (P.W.2) went to the deceased with Chath Singh and met his sister, the deceased who told him that she was still facing tortures as before at in-Iaws instance. P.W.2 conveyed this to the informant. It is further stated that 2/4 days after, one of His relation Kuldeep Yadav came to him and told that the appellant had sent information to him (the informant) that his (appellant's) wife was missing, and she should be searched. He then went to the appellant and when enquired from he alleged rattier, that he (the informant) had concealed their and was enquiring form him. He has further deposed that he came to know that the dead body of a female was floating in the tank at Simultafla and then he having gone there identified the dead body as of his daughter. The S.I. then came and took out the dead body form the tank. Thus, the informant has fully supported the F.I.R. version. P.W.2 Mithu Mahto the informant's assurance that the deceased was against sent to the appellant's house. It has been further established that thereafter also she was not pulling on well with her in-laws. The S.I. then came and took out the dead body form the tank. Thus, the informant has fully supported the F.I.R. version. P.W.2 Mithu Mahto the informant's assurance that the deceased was against sent to the appellant's house. It has been further established that thereafter also she was not pulling on well with her in-laws. She continued to be tortured and this she had told to her brother P.W.2 when latter had gone to the appellants house with Chath Prasad for his deceased sister, arid then it has been proved that the deceased was missing from the house of the appellant from the morning of 25.11.85 and two days after on 27.11.85 her dead body was recovered from a tank situated at a distance of 4 kilometer from the appellant's house and the dead body had ante mortem injury to suggest her homicidal death. To explain the missing of the from form his house and her dead body being found in the tank the appellant has adduced oral evidences of four witnesses, D.Ws. 1,2,3 and 4. D.Ws. 1, 2 and 3 are ladies and co-villagers of the appellant. They have come to say that Chunaki Devi was going in the morning or 25.11.85 to jungled in their company to collect, fire wood and in the way she disassociated from them for easing sake. D.W.4 Ramdeo Mahto has stated that on the relevant day at 10 A.M. he had met the deceased near a hill and when he asked, she told him that she was going to Simultalla. These all evidences have been led by the appellant to explain how the deceased disappeared from his house on 25.11.85, but from, face of these evidences, as it is rejected on the record within their surroundings, they are not acceptable. We have seen above from the evidence of P.W.4 Kuldeep Mahto that the appellant had gone to him in the morning of 25.11.85 itself to say that his wife had caused resulting to her death., There being no injury whatsoever on her private part the murder could not be said to be for any sexual or otherwise lust of the murderer and it would be on account of his personal grudge only. 10. Then on circumstances nos. iv and v referred to above there is testimony of P.W.4 Kuldeep Mahto. 10. Then on circumstances nos. iv and v referred to above there is testimony of P.W.4 Kuldeep Mahto. He is a resident of villageSiat8ur, a neighbouring mauza of the appellant and the informant is father-in-law of his brother. His evidence on relevant point is that, on 25th November, 1985 in the morning the appellant went to him and informed that his wife, the deceased had become traceless and so he (the witness) should go to the informant to find out whether she had gone to her parents. He then came to the informant who met him in the way itself to whom he conveyed the message. This fact that the appellant sent P.W.4 to the informant on 25th November, 1985 itself to intimate about the missing of the deceased finds reference in the F.I.R itself and also in the testimony of the informant. 11. From the above therefore we find that all the circumstances referred to in paragraph-6 above as relied, upon by the prosecution have been established by consistent and reliable evidence. It has been established that the appellant's wife was being tortured continuously by her in laws and for that she had sought shelter in the parents house and only a fortnight before the occurrence in question there was a Panchayati in which appellant's father Sewa Mahto had assured of their good behaviour in relation to the deceased and it is with such assurance that the deceased was again sent to the appellant's house. It has been further established that thereafter also she was no pulling on well with her in-laws. She continued to be tortured and this she had told to her brother P.W.2 when latter had gone to the appellant's house with Chath Prasad for his deceased sister and then it has been proved that the deceased was missing from the house of the appellant from the morning of 25.11.85, and two days after on 27.11.85 her dead body was recovered from a tank situated at a distance of 4 kilometer from the appellant's house and the dead body had ante mortem injury to suggest her homicidal death, To explain-the missing of the deceased from his house and her dead body being found in the tank the appellant has adduced oral evidences of four witnesses, D.Ws. 1 ,2,3 and 4. D.Ws. 1, 2 and 3 are ladies and co-villager of the appellant. 1 ,2,3 and 4. D.Ws. 1, 2 and 3 are ladies and co-villager of the appellant. They have come to say that Chunaki Devi was going in the morning of 25.11.85 to jungle in their company to collect fire wood and in the way she disassociated from them for easing sake. D.W.4 Ramdeo Mahto has stated that on the relevant day at 10 A.M. He had met the deceased near a hill and when he asked she told him that she was going to Simultalla. These all evidences have been led by the appellant to explain how the deceased disappeared from his house on 25.11.85 but from face of these evidences, as it is reflected on the record with r their surroundings, they are not acceptable. We have seen above from the evidence of P.W.4 Kuldeep Mahto that the appellant had gone to him in the morning of 25.11.85 itself to say that his wife had become traceless should go to her parents place for search. If the deceased had left the appellant's house along with D.Ws. 1, 2 and 3 to collect fire wood in the morning of 25.11.85, it must have been in the knowledge of the appellant and her other in-law relations. The deceased must have disclosed to them where she was going. One of the lady D.W, namely, D.W., 2 Lukhri Devi is the aunt of her husband and so she had left the house virtually with some neighbouring ladies including one family member. There was thus no question of her disappearance. She could said to be missing from her in-laws family only after return of those ladies witnesses who had gone with the deceased to jungle to collect fire woods. In the early morning it self when the deceased had left the appellant's house there was no question for the later to go to P.W.4 and say that his wife had disappeared. There was no question of his asking P.W.4 to go to his Sasural to trace her out. So the explanation furnished by the appellants about missing of "the deceased from his house on 25.11.85 is not acceptable. It is rather an added circumstance against him which speaks that the information the appellant gave to P.W.4 in the morning of 25.11. There was no question of his asking P.W.4 to go to his Sasural to trace her out. So the explanation furnished by the appellants about missing of "the deceased from his house on 25.11.85 is not acceptable. It is rather an added circumstance against him which speaks that the information the appellant gave to P.W.4 in the morning of 25.11. Missing of the deceased was absolutely an imaginary, false, with a view to build false explanation about this situation: His conduct speaks a volume against his innocence. The conduct rather reflects that he had knowledge that his wife was no more alive and was murdered and therefore he had to explain away her disappearance from his house with false story. 12. The hypothesis put by the learned defence counsel as referred to in paragraph-5 above that the tank in question being within the compound wall and therefore there being a number of servants of Dilip Sarkar living at his Kothi it may be possible that the deceased having eased herself went near the pond for water purposes and servant of Dilip Sarkar throated her to death and threw the dead body into the pond, is not conceivable for many reasons. The story of the deceased going to jungle on the fateful day itself is disbelieved. Secondly the servant, of Dilip Sarkar could not be/attributed with any motive to commit murder of the, deceased particularly when she is not shown to have been murdered for sexual lust. No injury on any private part of the, deceased was found, on postmortem examination. The postmortem examination rather discloses that the deceased was done to death by throttling which may be only for the personal grudge of the murderer. There is evidence on the record that the appellant used to ill treat the deceased with grievance that she was not giving birth to a child. Then there is circumstance on the record to show that the appellant was quite indifferent in searching out the deceased, He did not himself inform her parents nor to any lawful authority about her disappearance and rather went to P.W.4 with false information on the morning of 25.11.85 itself. At least in the evening of 25.11.85, when the ladies DWs. Then there is circumstance on the record to show that the appellant was quite indifferent in searching out the deceased, He did not himself inform her parents nor to any lawful authority about her disappearance and rather went to P.W.4 with false information on the morning of 25.11.85 itself. At least in the evening of 25.11.85, when the ladies DWs. would have returned from jungle, he could know from them the exact time and place from when and where she had dissociated herself from other ladies and was traceless, but he did not inform it to the informant or any other legal authority. Had he done so, that could have been helpful in early tracing out of the deceased, either alive or dead. These all circumstances speak that the deceased Chunaki Devi was murdered by the appellant and his father with a view to save themselves and they secretly in the night threw the dead body into a distant tank situated at 4 kilometer away. 13. From the discussions of facts and circumstances as above, I find that the learned trial court has correctly relied upon the incriminating circumstances against the appellant as available on the record. The chain of which is such that it is complete without any missing one and is able to afford reasonable ground for inference consistent to the guilt of the appellant. The circumstances are absolutely inconsistent to the appellant's innocence. The circumstance clearly established that the appellant has committed murder of the deceased and this is the only legitimate conclusion to be drawn there from. 14. His thus found that the learned trial court relying upon the circumstantial evidence on the record has correctly held the appellant guilty of the charge of murder under section 302 of the I.P.C. as well as section 201 of the same. We have found no infirmity in the order of conviction and sentence. 15. The appeal is found to have no merit and so it is dismissed. The appellant is on bail. His bail bonds are cancelled and he is directed to surrender in the Court below to serve out remainder of sentence.